Summary
In Rockford Amusement Refreshment Co. v. Baldwin, 252 Ill. App. 1, the question was whether or not a dance hall license should be issued under provisions of an Illinois law regarding such permits outside city limits.
Summary of this case from Boyd v. Board of TrusteesOpinion
Gen. No. 7,961.
Opinion filed February 21, 1929.
1. EXHIBITIONS AND SHOWS — right to conduct dance hall as statutory. Since the enactment of the law providing for the regulation of dance halls and for the licensing of persons operating or maintaining them, Cahill's St. ch. 34, ¶ 195, the right to engage in such business and to be protected by law in its prosecution cannot be claimed as a common-law right but rests upon statute.
2. LICENSES — when necessary to maintenance of dance hall. The fact that the statute, Cahill's St. ch. 34, ¶ 195, requires that a license be obtained to enable one to operate and maintain a dance hall in certain localities, necessarily implies that no one has a right to maintain or operate a dance hall in such localities without having obtained a license.
3. INJUNCTION — when not granted where remedy by mandamus adequate. Though one has complied with all the requirements of Cahill's St. ch. 34, ¶ 195 et seq., regulating the licensing of dance halls and the issuance of such a license is mandatory upon the county authorities, and the issuance of the license is arbitrarily and wrongfully refused and such refusal may cause him loss of anticipated profits, injunction will not lie against the sheriff and supervisors to restrain them from interfering with his operation and maintenance of a dance hall, since he has a complete and adequate remedy at law by mandamus to compel the issuance of the license.
4. INJUNCTION — when not granted where statute will be nullified. Where a statute requiring the procuring of a license to conduct a certain kind of business will be nullified by the issuance of an injunction restraining the authorities from interfering with the conduct of such a business by one who has been denied a license, the injunction will be denied, even though the act of the authorities in refusing to issue the license is arbitrary and wrongful and its issue may be compelled by mandamus.
Appeal from the Circuit Court of Winnebago county; the Hon. ARTHUR E. FISHER, Judge, presiding.
WILLIAM D. KNIGHT, State's Attorney and A.B. LOUISON, Assistant State's Attorney, for appellants.
FRANK E. MAYNARD, for appellee.
Rockford Amusement and Refreshment Company, a corporation, obtained a judgment awarding a writ of mandamus, directing the Board of Supervisors of Winnebago County et al., to issue a license to that company to maintain and operate a dance hall and road house. The respondents in that case perfected an appeal which is now pending in this court [ 251 Ill. App. 599].
After said appeal was perfected, appellee filed a bill in chancery against the sheriff and board of supervisors, for an injunction restraining them from interfering with appellee and its business of conducting a dance hall and road house at the location involved in the mandamus proceeding, until the determination of the appeal in that case. The trial court granted a temporary injunction and overruled a general demurrer to the bill. Appellants elected to stand by their demurrer and a decree was entered making the injunction permanent. This appeal is prosecuted to reverse that decree. The right to relief in this case is based upon a claim of irreparable injury resulting from a loss of anticipated income from the operation of the dance hall pending the appeal in the mandamus proceeding.
Section 1 of the act to regulate dance halls or road houses, Cahill's St. ch. 34, ¶ 195, provides: "It shall hereafter be unlawful for any person or persons to operate or maintain a public dance hall or road house for the use of the general public outside of the limits of any city, village or incorporated town without first obtaining a license therefor from the county board of the county where the public dance hall is situated, in accordance with the provisions of this Act." Since the enactment of that law, the right to engage in such business and to be protected by law in its prosecution can no longer be claimed a common-law right, but is a right which the statute prescribes. ( People v. Cregier, 138 Ill. 401.) The mere fact that a license must be applied for and obtained under the terms of the statute, necessarily implies that no one has a right to operate or maintain a dance hall outside the corporate limits of cities and towns without a license. The statute expressly prohibits the conducting of any such business without first obtaining a license. The obtaining of such a license is a prerequisite to any right to engage in that business.
While it has been held that the statute is mandatory as to all persons and corporations who bring themselves within its provisions ( Grove v. Board of Sup'rs of Piatt Co., Ill., 246 Ill. App. 241) it is of no consequence in this proceeding that appellee had applied for a license and had fully complied with the statute. The remedy by mandamus was complete and adequate. Appellee would not be justified in proceeding with the operation and maintenance of the dance hall without the license which the law requires and which the county board must grant when the law is complied with. Equity will not interfere because of the existence of a complete and adequate remedy at law. The fact that appellee may suffer losses from anticipated profits or that the refusal of a license was due to arbitrary and wrongful action of the county board will afford no ground for the interposition of a court of equity. ( Grace Missionary Church v. City of Zion, 300 Ill. 513; Film Classics of Illinois v. Dever, 234 Ill. App. 614. ) Injunction and mandamus are not correlative remedies in the sense of being applicable to the same subject matter. ( Film Classics of Illinois v. Dever, supra; Fletcher v. Tuttle, 151 Ill. 41.)
Inasmuch as appellee had not obtained a license from the county board to operate and maintain a dance hall, its operation without a license would be unlawful, and the effect of an injunction would be to permit appellee to operate its dance hall in violation of the law. A court of equity has no such power. ( City of Chicago v. O'Hare, 124 Ill. App. 290.) The provisions of the statute cannot be nullified by a chancery proceeding seeking to prevent the officers from enforcing it. If the administrative officers do not properly exercise their functions under the law, the remedy is by mandamus. ( Film Classics of Illinois v. Dever, supra.)
A somewhat similar situation arose in Vitagraph Co. of America v. City of Chicago, 209 Ill. App. 591, and it was there held that a bill for injunction presented no cause for equitable relief.
For the reasons herein expressed, the decree is reversed and the cause remanded with directions to sustain the demurrer and dissolve the injunction.
Reversed and remanded with directions.